FTC Commissioner Terrell McSweeny

[Commentary] Americans should have rights to and control over their data. If we don’t like a service, we should be free to move our data to another. The same network effect that creates value for people on Facebook can also lock them into Facebook’s walled garden by creating barriers to competition. People who may want to leave Facebook are less likely to do so if they aren’t able to seamlessly rebuild their network of contacts, photos, and other social graph data on a competing service or communicate across services.

I announce my resignation from my position as Commissioner of the Federal Trade Commission, effective April 28, 2018. I am grateful to President Obama and Vice President Biden for the opportunity to serve during some important milestones in the FTC’s history including the 100th anniversary of the agency and its first Commission led entirely by women. During the last four years, the FTC took careful stock of the tools it needs to remain nimble enough to navigate fast-paced digital markets.

[Commentary] Scrapping the Federal Communication Commission’s (FCC’s) net neutrality rules will harm consumers and content creators, and the Federal Trade Commission (FTC) isn’t going to be able to stop it.  As a commissioner at the FTC, I can vouch for the fantastic competition and consumer protection work our small agency does with its dedicated and hardworking staff. There are many things it is equipped to do well. But protecting the open internet is not one of them. The FTC does not have specialized expertise in telecommunications.

[Commentary] With so much going on in Washington, the American people may not be up to date with the Congressional Review Act — an obscure tool Congress has been using to rescind policies that were put in place by the previous administration. Most recently, the House and Senate voted to undo rules designed to protect the privacy of American consumers when they sign up for and use broadband Internet service. This would leave Internet users worse off, but there’s still time for President Trump to veto the legislation.

What people may not realize, moreover, is that if the legislation approved by Congress becomes law, there will be no privacy rules governing broadband providers. The FCC no longer will be able to protect consumer privacy and, because of arcane restraints on its jurisdiction, the FTC will be unable to pick up the slack. Last year’s election was fought over many issues; removing privacy protections from American consumers was not one of them. We have yet to hear from a single consumer who wants less control over their sensitive personal data. Unfortunately, that is exactly what this legislation would do. It is our hope that President Trump, who was elected by arguing that he would stand up for the average American, does what most Americans would expect and vetoes this legislation.

[Commentary] The Federal Communications Commission decided to put on hold a portion of its historic privacy rule approved just a few months ago – the part dealing with data security. Congress is considering whether to use the Congressional Review Act to eliminate the FCC broadband privacy rules in their entirety – a move that would also prevent the FCC from issuing similar rules in the future. The rationale offered for all this action is that the rule is not consistent with how the Federal Trade Commission protects consumer privacy and data security – and that Internet service providers (your cable and wireless companies) are, therefore, being subjected to different requirements than other companies and platforms on the Internet (the “edge providers”). In the words of Acting FTC Chairman Maureen Ohlhausen and FCC Chairman Ajit Pai, “The federal government shouldn’t favor one set of companies over another."

But here’s the thing: The Federal Trade Commission does not have jurisdiction over the security and privacy practices of broadband, cable and wireless carriers.

“Today Chairman Pai has created an unfortunate dilemma: accept a Bureau-level action that indefinitely unwinds key consumer privacy protections established by the FCC last year, or accept four business days (rather than the usual three weeks) to evaluate and vote on a decision that has massive ramifications for the security of private information held by broadband providers,” said FCC Commissioner Mignon Clyburn.

“I am very troubled by the news that the data security protections of the Broadband Privacy Rule will be put on hold. What this means, in effect, is that consumers with a broadband subscription will be less protected because the only cop on the beat has been taken off their patrol. In an age of Internet connected everything, removing security requirements from broadband providers is needlessly dangerous for American consumers. The rules the FCC adopted conform to long standing FTC practice and provide clear rules on how broadband companies should protect their customers’ personal information. This action weakens the security requirement guarding every consumers’ most personal data and should be reconsidered,” said FTC Commissioner Terrell McSweeny.

“The outcome is clear. Chairman Pai is determined to take action that leaves consumers without a cop on the beat protecting their personal information from misuse by their broadband service provider. This means no federal data security requirements whatsoever for broadband providers. This is the antithesis of putting #ConsumersFirst,” said Clyburn and McSweeny.

“Then-Commissioner Pai said in 2014 that ‘FCC decisions issued on the bureau level cut the commissioners out of the decision-making process entirely.’ Today, he is using the very same tool as Chairman that he criticized as a Commissioner. I could not agree with his 2014-self more that ‘bad process makes bad policy.’ And that is exactly what we see here today,” continued Clyburn.

[Commentary] For years, the Federal Trade Commission has been the lead federal agency in protecting the privacy and data-security rights of the American consumer by bringing cases against companies that act against consumers’ privacy interests. The FTC has also advocated for telling consumers about the data being collected about them and for offering people a choice before sensitive information—like data about their health, finances, children, or geolocation—is gathered and shared.

But the system has worked because the FTC has not acted alone. Other federal agencies (including the Federal Communications Commission) and state attorneys general have been helpful in this mission. In October, the FCC took the historic step of enacting basic consumer-privacy rules for internet service providers and wireless carriers. These new rules were aimed at providing people with a choice about whether to allow their carriers and cable companies to use and share their sensitive personal information. They are remarkably similar to the enforcement practices of the FTC’s long-standing and successful privacy program. Unfortunately, with the change in administrations, one of the first orders of business for the cable and broadband companies (not to mention the Trump White House and congressional Republicans) is to rescind these rules. But removing them would essentially leave the cable and phone companies without any privacy regulator.

[Rep. Frank Pallone is the ranking member of the House Commerce Committee. Terrell McSweeny is a commissioner at the Federal Trade Commission.]